For most of us, our dogs are our children, and it is difficult to imagine that they can cause any harm.

Unfortunately, dog bites can inflict serious injuries or even cause the death of a person or animal.

Anybody who has suffered damages caused by a dog bite can use the pauperien action to claim the damages from the dog’s owner.

It is important to understand that a dog owner can be liable to pay the damages that were caused by the dog, sometimes without the owner being at fault.

 

What is pauperien liability?

The actio de pauperie, which deals with damages caused by domesticated animals, has its origin in the ancient Roman law that was written around 450 BCE. That explains why we still use a Latin term for this legal principle. In essence, it provides a way in which a person who suffered harm caused by an animal can claim damages from the owner of that animal, even where the owner was not at fault.  Nowadays it is mostly used in dog bite cases.

 

Requirements for a successful pauperien claim after a dog bite.

For a claimant to be successful with the pauperien action, there are certain requirements.  These are:

  • The claimant can only use this action to claim damages from the owner of the animal and not from someone who just had control of the animal.
  • It must be a “domesticated” animal. It is no surprise that dogs and cats fall into this category, but tamed wild animals such as meerkats and even bees can be seen as domesticated.
  • The animal must act “against its nature”. Our courts interpret this as an animal that does not act in a decent and well-mannered way.   It is based on the “inward vice and excitement” of the animal.  Where an animal reacts to external stimuli, it is not seen to act against its nature.  The application of this is a grey area in our law.  In my opinion, there are situations where it would be natural for a dog to bite but where our courts do not regard it as natural behaviour.
  • Claimants can only claim if their presence at the place where the injury occurred was lawful. This means that a thief who was busy breaking into a property cannot claim damages, but the person who did a delivery when bitten can claim damages.

 

Defences against a pauperien action if your dog bites someone.

There are defences that dog owners can use against a claim under the pauperien action.  These are:

  • If the actions of the claimant caused the bite, the claimant will not be successful. For example, if the claimant pulled the dog’s tail, or kicked it, the action will not succeed.
  • Where a third party provoked the animal. This also includes provocation by another animal.
  • If the claimant voluntarily accepts the risk of injury. An example of this is where the owner has clearly visible signs up on the gate and fence to warn that there is an aggressive dog on the premises, and someone still chooses to enter despite the signs.

Damages caused by dog bites can amount to millions of rands.  In a recent case in the Eastern Cape High Court in the matter of Cloete v Van Meyeren, Cloete claimed R2,4 million from Van Meyeren.  Van Meyeren was not home at the time of the incident, and it seems that an unknown person opened the gate, which allowed the dogs to get out and attack Cloete in the street.  The court ruled that Van Meyeren had to pay the damages.

 

What can you do to protect yourself against such claims?

Your dogs must always be kept securely on your property.  Always close your gates and keep them locked and make sure that anybody on your property understands the importance of this.  Make sure there are no areas where dogs can get out on their own.  If your dogs are aggressive, you must have warning signs up where people can see them and understand the danger.  It must be accompanied by a picture of an aggressive dog so that people will understand it regardless of the language they speak or if they can read or not.  If you want to take your dog to a park or public area, and you are scared that it may bite someone, always use a good quality muzzle on your dog.  Most importantly, make sure that you have personal liability insurance that will protect you in the unhappy event that your dog bites someone.

 

 

Credentials: Dr Trudie Prinsloo is a qualified veterinarian and attorney. In 2015, she started Legalvet Services to provide legal advice to the animal health and veterinary industries in South Africa – and now she’s teamed up with us to tell us more about the dog bite law and the pauperien action. While Dr Prinsloo is a qualified attorney, she cannot give legal advice remotely. This blog is intended for informational purposes only and should in no way be regarded as a substitute for professional legal advice.

Disclaimer: dotsure.co.za is not responsible or liable for any advice or any other information provided herein. If you have questions about pauperien liability, the best course of action is to consult an attorney.